Gujarat High Court
United India Insurance Co.Ltd vs Kanubhai @ Kanyalal M Patel (Decd. ... on 24 November, 2021
Bench: R.M.Chhaya
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3606 of 2006
With
R/FIRST APPEAL NO. 3607 of 2006
With
R/FIRST APPEAL NO. 3609 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==============================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
UNITED INDIA INSURANCE CO.LTD,
Versus
KANUBHAI @ KANYALAL M PATEL (DECD. THRO LEGAL HEIRS & R)
& 4 other(s)
==============================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 1.1,1.2,1.3,1.4,5
NOTICE SERVED(4) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 3,4
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
common judgment and award dated 29.04.2005 passed by
the Motor Accident Claims Tribunal (Main), Surendranagar
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
in MACP No. 683 of 1994, the Insurance Company has
preferred these appeals under Section 173 of the Motor
Vehicles Act, 1988. First Appeal No. 3606 of 2006 relates to
death of person whereas First Appeal Nos. 3607 and 3609 of
2006 are arising out of claim petitions wherein the
respondents - original claimants were injured. Same set of
evidence is adduced in these appeals. In fact, at this stage,
it would be appropriate to note that before the Tribunal all
the Claim Petitions were heard together and MACP No.681
of 1994 was considered to be lead matter and evidence
adduced in the said claim petition is considered to be
evidence in all the Claim Petitions. It is also pertinent to
note that the Insurance Company as well as original
claimants have preferred separate appeals challenging the
judgment and award passed in MACP No. 681 of 2004 being
First Appeal Nos. 3609 of 2006 and 3087 of 2009
respectively, which are also heard along with these appeals
and are disposed of by separate judgment.
2.0. The following facts emerge from the record of these
appeals:
2.1. That the accident occurred on 20.03.1994 at about 9
pm on National Highway No.8 in the sim of village Janshali
on Limbdi Bagodara Road when deceased Kanatilal
Mandalia along with his wife and kids were coming from
Rajkot and were going towards Ahmedabad by NE 118 Car
No.GCB 4040 which was being driven by deceased Kantilal.
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
It is the case of the original claimants that deceased Kantilal
Gordhandas was driving his case with slow and reasonable
speed and also on the left side of the road and when said
car reached near scene of accident, one Truck No.5137
belonging to opponent no.2, was lying facing towards
National Highway No.8, going from Rajkot to Ahmedabad
that too on the left side of the road and without putting any
reflector and it was not possible for deceased Kantilal to see
the lying truck on the left side of the road and hence
deceased was dazzled on account of full lights of the
vehicles coming from the opposite direction, because of
which, deceased dashed with the rear portion of the lying
Truck No.GQY 5137, which resulted into serious accident,
due to which, deceased Kantilal and deceased Kanubhai
died on the spot. It is further the case that Hansaben and
Deepaliben also sustained serious injuries. An FIR was
lodged with the jurisdictional police Station. The original
claimants preferred claim petition under Section 166 of the
Act and claimed compensation of Rs.1, 50,00,000/-. The
original claimants also adduced following oral as well as
documentary evidence before the Tribunal.
Exh.No. Particulars
116 Deposition of Claimant Hansaben
127 Deposition of Ashokbhai Gordhandas
134 Deposition of Chartered Accountant
137 Circle of Income Tax Department for AY 1993-
135 Details of Taxable income of partnership firm
136 Details of Taxable income of deceased
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
141 Income Tax return of partnership firm for AY
1991-92
142 Income Tax return of partnership firm for AY
1992-93
143 Income Tax return of partnership firm for AY
1993-94
144 Income Tax return of partnership firm for AY
1994-95
150 Income Tax return of deceased partner for AY
1991-92
151 Income Tax return of deceased partner for AY
1992-93
152 Income Tax return of deceased partner for AY
1993-94
153 Income Tax return of deceased partner for AY
1994-95
The Tribunal after appreciating the evidence on record
and considering the submissions made by the respective
parties, partly allowed the claim petition and awarded the
compensation of Rs.1,88,000/- in MACP No.682 of 2004,
Rs.74,000/- in MACP No.683 of 2004 and Rs.2,98,000/- in
MACP No.684 of 2004 with 9% interest from the date of
application till its realization with proportionate costs. Being
aggrieved and dissatisfied with the same, the present
appellant preferred the present appeals.
3.0. Heard Mr. Maulik Shelat, learned advocate for the
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
appellant- Insurance Company. Though served, nobody
appears on behalf of the original claimants. The question
which arise in these appeals pertains to the conclusion
arrived at by the Tribunal as far as negligence is concerned.
The Tribunal after appreciating the manner in which the
accident has occurred has come to the conclusion that
driver of the truck involved in the accident is negligent to
the extent of 85% whereas the driver of the car who died
because of accident, in which, respondents of First Appeal
Nos. 3607 of 2006 and 3609 of 2006 were occupants along
with predecessor of the respondents of First Appeal No.3606
of 2006. Upon re-appreciating the evidence on record and
more particularly, considering the manner in which the
truck was standing in stationary condition on middle of the
road, that too during night hours and considering the
damage caused to the car, in First Appeal No. 3608 of
2006, this Court has come to the conclusion that the driver
of the truck was solely negligent. This Court after re-
appreciation of evidence has observed thus:
"7.0. Upon appreciation of the panchnama at
Exh. 26 and 62, it clearly appears that truck was
parked on the highway that too on night hours i.e.
at about 10. pm. The panchnama also clearly
recites that there was no parking light or reflector
attached to the truck and because of such
negligence on part of the truck driver deceased who
was driving the car dashed with the stationary
truck. Even reappreciating the oral deposition of
wife of the deceased Hansaben and other
eyewitnesses, it clearly transpires that merely
because of negligence on the part of the driver of
the truck by parking such a huge and heavy
vehicle that too at night hours that too without any
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
reflector or parking light. Upon reappreciation of
the evidence on record, therefore, this Court is of
the opinion that the driver of the truck was solely
negligent. It also further appears from the
admission of the driver in the criminal proceeding
being Exh. 118 wherein the driver has accepted the
offence. In totality of facts, upon re-appreciation of
such evidence on record we hold that the Tribunal
has committed an error in coming to the
conclusion that the driver of the car i.e. deceased
has negligent to the extent of 15%. We hold that
the driver of the truck was solely negligent. Ratio
laid down by the Hon'ble Supreme Court in the
case of Archit Saini and another (supra) would
squarely applies to the case on hand and in facts of
this case, the driver of the truck is therefore, held
solely negligent."
The very said observations would mutatis mutandis
applies to these appeals as far as point of negligence is
concerned. In all these appeals, this Court is of the opinion
that driver of the truck was solely negligent.
4.0. Mr. Shelat, learned advocate for the appellant in all
these three appeals candidly submitted that in view of later
judgment of the Hon'ble Supreme Court in the case of
National Insurance Company Limited vs. Pranay Sethi & ors
reported in (2017) 16 SCC 680, Magma General Insurance
Co. Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in
(2018)18 SCC 130, United India Insurance Company
Limited vs. Satinder Kaur @ Satwinder Kaur reported in
AIR 2020 SC 3076 and Archit Saini and another vs. Oriental
Insurance Company Limited and ors reported in AIR 2018
SC 1143, as such there is no possibility of any reduction in
the quantum of compensation awarded. Considering the
C/FA/3606/2006 JUDGMENT DATED: 24/11/2021
ratio laid down by the Hon'ble Supreme Court in the case of
Pranay Sethi & ors (supra), Magma General Insurance Co.
Ltd (supra), Satinder Kaur @ Satwinder Kaur (supra) and
Archit Saini and another (supra), this Court is of the
opinion that there is no possibility of any decrease in
compensation as awarded, which can be termed as just and
adequate compensation. In totality of facts, on all the
grounds including main ground of negligence, appeals fail
and therefore, they are liable to be dismissed and they are
hereby dismissed. However, there shall be no order as to
costs. The amount as awarded by the Tribunal shall be
disbursed as per the award.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
